Docket: T-1755-14
Citation:
2015 FC 288
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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SARITHA SUSAN THOMAS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
brought by the Minister, challenging the grant of Canadian citizenship to the
respondent, Mrs Thomas. The Minister has also challenged the grant of
citizenship to the respondent’s husband, Mr Vijayan, in a companion application
(T-1756-14).
[2]
The Court has reached opposite conclusions in
these files. For the reasons given below, the Minister’s application for
judicial review with respect to Mrs Thomas is dismissed. For the reasons given
in the judgment disposing of the companion application, the Minister’s
application for judicial review concerning Mr Vijayan is granted.
I.
Facts
[3]
Mrs Thomas is an Indian citizen and appears to
have held permanent resident status in the United Arab Emirates until 2008. She
moved to Canada as a permanent resident with her husband on July 16, 2007.
[4]
The respondent gave birth to her youngest child
in the United States on September 30, 2007. This child had serious medical
problems. The respondent alleges that she home-schooled her three older
children while caring for her hospitalized newborn in the United States between the date of birth and March 2008. She claims that she entered Canada with her family on March 21, 2008, after her youngest child was able to travel. Her
passport does not show any entry stamp for this date.
[5]
The respondent and her husband submitted
applications for Canadian citizenship on July 18, 2011. Thus, the relevant time
period for residence runs from July 18, 2007 to July 18, 2011.
[6]
The respondent submitted report cards showing
that her children began attending school in Canada in September 2008.
[7]
The respondent provided invoices for medical
services in Canada on July 29, August 9 and September 20, 2007. Following the
birth of her daughter, she provided no records of any medical treatment in Canada between March 2008 and August 2008.
[8]
The respondent also submitted financial records
showing little activity in Canada between March 2008 and August 2008.
[9]
A Citizenship Officer prepared a File
Preparation and Analysis Template [FPAT] and placed it on the file for
consideration by the Citizenship Judge. The FPAT is a protected document that
is not disclosed as part of the certified tribunal record [CTR]. The Officer
swore an affidavit in these proceedings claiming that he raised the following
concerns in the FPAT:
1. The respondent’s declared return to Canada on March 21, 2008 was not
confirmed in her passport;
2. The respondent waited nearly two years before seeking permanent
residence in Canada for her daughter born in the United States;
3. The report cards for the respondent’s children only begin in
September 2008;
4. The respondent’s bank records show minimal activity in Canada from March 2008 until September 2008;
5.
The respondent provided no evidence of medical
treatment for herself or her children in Canada between March 2008 and August
2008;
6. The respondent declared six absences during the relevant period but
her passports only contain two Canadian re-entry stamps; and
7.
The respondent renewed her passport
approximately 7 years before its expiry.
[10]
Mrs Thomas and her husband attended separate
hearings before the Citizenship Judge on October 29, 2013. The Judge issued his
decision granting Canadian citizenship to Mrs Thomas on June 30, 2014.
[11]
The applicant filed a notice of application for
judicial review on August 14, 2014. The Court granted leave.
II.
Issues
[12]
This application raises two issues:
1.
Should an extension of time be granted?
2.
Did the Citizenship Judge assess the evidence
unreasonably?
III.
Standard of Review
[13]
The first issue is a question of law which the
Court must answer for itself.
[14]
The parties agree that the standard of
reasonableness applies to the second issue (see e.g. Canada (Citizenship and
Immigration) v Rahman, 2013 FC 1274 at para 13; Canada (Citizenship and
Immigration) v Al-Showaiter, 2012 FC 12 at paras 12-14; Chowdhury v
Canada (Citizenship and Immigration), 2009 FC 709 at paras 24-28; Canada
(Citizenship and Immigration) v Zhou, 2008 FC 939 at para 7).
IV.
Decision under Review
[15]
The decision contains three pages of handwritten
Decision Notes and two more pages of miscellaneous notes.
[16]
In the Decision Notes, the Citizenship Judge
immediately declares: “The Applicant was very credible
at the hearing”. He then provides background information.
[17]
The Citizenship Judge notes that there are no
stamps in the respondent’s passport from land crossings into the US “probably because she had a US visa”. Later, he notes that the
respondent had 55 outstanding Ontario Health Insurance Plan [OHIP] claims
during the residence period.
[18]
The Citizenship Judge addresses the Officer’s
concern about the delay in sponsoring the newborn daughter for Canadian
permanent residence. He accepts the respondent’s account of the child’s health
complications in the United States.
[19]
The Citizenship Judge concludes: “Applicant has provided sufficient evidence of her physical
presence in Canada. I am satisfied that she has met the residence requirements
of paragraph 5 (1) (c) of the Citizenship Act.”
V.
Analysis.
A.
Should an extension of time be granted?
[20]
The Citizenship Judge rendered the decision
under review on June 30, 2014. At that time, the Citizenship Act, RSC
1985, c C-29 [Act] gave the Minister 60 days to appeal. The Minister’s notice
of appeal would have been due on or before August 29, 2014.
[21]
However, on August 1, 2014, an amendment made
pursuant to the Strengthening Canadian Citizenship Act, SC 2014, c 22
came into force. Since the amendment, section 22.1 of the Act provides that a
notice of application for leave must be filed within 30 days of the decision.
[22]
Due to an administrative error, the Minister’s
file reflected the deadlines of the Act as it read at the time the decision was
rendered. As a result, the notice of application for leave was filed on August
14, 2014.
[23]
To obtain an extension of time, a party must
satisfy the four part conjunctive test set out in Canada (Attorney General)
v Hennelly, [1999] FCJ No 846 (FCA) by demonstrating: (1) a continuing
intention to pursue the application; (2) that the application has some merit;
(3) that no prejudice to the other party arises as a result of the delay; and
(4) that a reasonable explanation for the delay exists.
[24]
I observe that the Court must decide this matter
even though leave was granted, since the order granting leave was silent on
whether an extension of time was appropriate (Deng Estate v Canada (Public
Safety and Emergency Preparedness), 2009 FCA 59 at paras 15-18).
[25]
In my view, the Minister has met the Hennelly
test. To begin, he has shown a continuing intention to file the application. He
provided affidavit evidence to that effect. The application was filed late but
well in advance of the deadline which he erroneously believed to be in force.
As such, I accept that the Minister always intended to challenge the decision
under review and filed the application as soon as he became aware of the error.
[26]
The application is not entirely without merit.
It raises at least some arguable issues.
[27]
I reject the respondent’s argument that an
extension would inflict prejudice upon her. The inconvenience she mentions does
not follow from the delay but from the very fact that her grant of citizenship
has been challenged. The same prejudice would have arisen even if the Minister
had filed this application the day after the Citizenship Judge rendered the
decision under review. The application was filed six weeks after the decision
was rendered and two weeks late. This delay is not so great as to inflict any
prejudice which would not have existed otherwise.
[28]
Finally, I accept the Minister’s explanation as
reasonable. Although it is somewhat unseemly for government lawyers to miss
statutory deadlines, the human error in this case is excusable. Moreover, the
brevity of the delay suggests that the Minister’s delegates identified their
error rather promptly.
B.
Did the Citizenship Judge assess the evidence
unreasonably?
[29]
The Citizenship Judge applied the quantitative
test to approve Mrs Thomas’s application for Canadian citizenship. The question
before the Court is whether he erred in concluding that she had established her
physical presence in Canada during the relevant period.
[30]
According to the Minister, there is insufficient
credible evidence to establish that the respondent was physically present in Canada for 1,095 days. In particular, the Minister argues that the evidence does not
support her presence in the country between March and June 2008.
[31]
The respondent counters that the Citizenship
Judge applied the quantitative test reasonably and addressed the Minister’s
concerns. Her daughter could not obtain publicly funded health care as soon as
she entered Canada in March 2008 because there is a three month waiting period
to become eligible for coverage. In the meantime, she received follow-up care
in the United States. In addition, Mrs Thomas declared absences from Canada between June and August 2008. That accounts for her limited bank activity in Canada during that time.
[32]
In Canada (Citizenship and
Immigration) v Raphaël, 2012 FC 1039 at para 28 [Raphaël], Justice
Boivin explained that a Citizenship Judge’s decision must address gaps and
inconsistencies in the evidence in order to be reasonable:
It is not up to this Court to reassess the
evidence submitted by the respondent. That being the case, the Court can
only note that several gaps in the evidence do not seem to have been considered
or analyzed by the citizenship judge (Abou-Zahra, Al Showaiter,
above). Contrary to the respondent’s argument, the Court is unable to
understand the citizenship judge’s reasoning on the mere reading of the reasons
and notes and comprehend what were the relevant factors or documents that
convinced him that the respondent met the residence tests (Saad, above).
In fact, the respondent is in effect asking this Court to surmise the
citizenship judge’s reasoning. The respondent did not convince this Court that
the citizenship judge’s decision falls within a range of possible, acceptable
outcomes in respect of the facts and law.
[Emphasis added]
[33]
In Canada (Citizenship and
Immigration) v Abou-Zahra, 2010 FC at para 30 [Abou-Zahra], Justice
Boivin again overturned a citizenship decision because the Citizenship Judge
had failed to “examine, weight and analyze the
evidence, which contained major shortcomings”. That evidence included
bank documents showing minimal activity in Canada, in addition to problematic
tax documents, telephone bills and credit card statements.
[34]
In my view, the Citizenship Judge did not commit
any reviewable error. Although his notes could have been clearer and more
thorough, his ultimate decision rests on a reasonable assessment of the
evidence, including the explanations provided by Mrs Thomas. On judicial
review, the Court must defer to the decision-maker’s weighing of the evidence and
credibility determinations in the absence of clear error.
[35]
Unlike Raphaël and Abou-Zahra,
this case does not feature unexplained gaps in the evidence. Mrs Thomas
explained that her bank activity was minimal during the period raised by the
Minister due to her declared absences from the country. She also explained that
her youngest daughter did not use public health care as soon as she entered Canada in March 2008 because of the waiting period. She states that her daughter and she obtained
coverage in November 2008 and subsequently accessed Canadian health care
services.
[36]
Upon evaluating the totality of the evidence,
the Citizenship Judge reasonably concluded that Mrs Thomas met the quantitative
test for citizenship. There is no reason for this Court to intervene.
VI.
Remedy
[37]
The Court will dismiss the Minister’s
application for judicial review without costs.
[38]
The parties did not propose any question for
certification and none will be certified.
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